Dominic Murage & 4 others v Richard M Bosire & 6 others [2021] KEELRC 1995 (KLR)
The bottom line
#A Kenyan court blocked a university union election run on a disputed membership list, ordering instead an inclusive election so no lecturer's voting rights were cut off.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants established a prima facie case for interim injunctive relief
Yes. The applicants swore under oath that they are members and produced pay slips showing UASU chapter deductions, and a signed, serialized register listing them, which outweighed the 3rd respondent's unauthenticated agency fee payers list.
The court applied the Giella principles. The applicants demonstrated a prima facie case with probability of success: sworn testimony of membership, pay slips evidencing union deductions, and a serialized register signed by the assistant secretary listing them. The counter-list produced by the 3rd respondent was unsigned and unserialized, and the court found no reason to prefer it over the applicants' register.
Whether the applicants would suffer irreparable harm not compensable by damages
Yes - disenfranchisement in the impugned elections would violate the claimants' Article 36 right to freedom of association in a manner not remediable by costs.
The court held that allowing the 15/3/2021 election on the 3rd respondent's register would disenfranchise the applicants. Such conduct, if it later emerged the applicants were successful, would amount to an unmitigated violation of the constitutional right to freedom of association under Article 36, incapable of adequate compensation by an award of damages.
Where the balance of convenience lies given two parallel electoral processes
The balance of convenience favoured an inclusive election on 18/3/2021 on the verified register, with dissatisfied parties at liberty to seek redress afterwards.
Two parallel electoral processes had been convened by rival officials. The court found the greater good lay in allowing everyone to participate in the 18/3/2021 election on the inclusive register, rather than an exclusionary election on 15/3/2021, and preserved recourse to the court for anyone aggrieved by the claimants' participation.
Whether the 3rd respondent could file a further affidavit without leave
No - the further affidavit was struck out as irregular since the applicants have the last word in the order of things.
The court held that a party may not respond to a further affidavit without leave of the court, as the applicant has the last word. Matters that should have been canvassed in the replying affidavit could not be introduced via a further affidavit filed without leave.
Legal principles established
#- At an interlocutory stage an applicant need only demonstrate a prima facie case with probability of success, per the Giella test
- An unserialized, unauthenticated membership list carries less evidential weight on the face of the documents than a continuous, signed register
Court orders
#- 1.An order of interim injunction restraining the Respondents, their servants, or agents or any person acting on their behest from proceeding with the entire process of elections vide the notice dated 15/1/2021 scheduled for 15th March 2021
- 2.The elections of the 7th respondent to proceed based on the inclusive register of members issued vide letter dated 9/1/2021 and based on the notice dated 11th February 2021, to take place on 18th March 2021
- 3.Costs in the cause
- 4.The further affidavit sworn by the 3rd respondent struck out as irregular
- Jurisdiction invoked
- Jurisdiction over the suit and the interlocutory application in an employment/industrial relations matter; Article 36 of the Constitution (freedom of association) invoked; Article 159(2)(d) and Article 48 invoked for virtual delivery of the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dominic Murage & 9 others v Universities Academic Staff Union & 2 others [2021] KEELRC 2350 (KLR)[2021] KEELRC 2350 (KLR)21 Jun 2021followed
Cite this brief
#Cite this brief
Caselaw, "Dominic Murage & 4 others v Richard M Bosire & 6 others [2021] KEELRC 1995 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 26/2/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1995/eng@2021-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.